A. Applicability

Comment: A respondent recommended DFARS 252.212-7000, Offeror Representations and Certifications--Commercial Items, be retained in the list of representations and certification at 204.1202(2) that are not to be included in the solicitation when using the provision DFARS 252.204-7007, because that provision is to be used in non-commercial solicitations only. Another respondent recommended that DFARS 204.1202(2) include provisions that are applicable to solicitations, rather than those not applicable, similar to FAR 52.204-8.

Response: The first respondent is correct that DFARS provision 252.212-7000 is for commercial solicitations only and will not be included in solicitations that include DFARS 252.204-7007, because that provision is used when FAR 52.204-8 is included, and that FAR provision is not used in solicitations issued under FAR part 12 for acquisition of commercial items. However, inclusion of DFARS 252.212-7000 on the list at DFARS 204.1202(2) is not appropriate, because the list at DFARS 204.1202(2) should include only provisions that are listed in 252.204-7007, Alternate A, Annual Representations and Certifications. Therefore, the final rule does not retain 252.212-7000 on the list at 204.1202(2). Further, DFARS 204.1202(2) introductory text was amended to clarify that the listed provisions will not be included separately in the solicitation, because the appropriate representations and certifications will be covered by inclusion of DFARS 252.204-7007 in the solicitation.

Comment: A respondent recommended the representations at DFARS 252.216-7003 and DFARS 252.239-7011 be retained in the list of representations and certifications at DFARS 252.204-7007 because the Contractor is asked to make a representation about itself.

Response: DFARS 252.216-7003 will be retained in the list. DFARS 252.239-7011, however, will not be included because the clause requires contractors to make certain representations during contract performance concerning reimbursement of special construction and equipment costs. According to DFARS 239.7408-1(a), "special construction normally involves a common carrier giving a special service or facility related to the performance of the basic telecommunications service requirements." Since these are costs that occur during contract performance, the contractor would not be able to make a proper representation prior to award.